Allahabad High Court
Om Prakash Bajpai vs Additional District Judge, Kanpur And ... on 22 January, 2002
Equivalent citations: 2002(2)AWC1105, 2002 ALL. L. J. 661, 2002 A I H C 1876, (2002) 2 ALL WC 1105, (2002) 47 ALL LR 97, 2002 ALL CJ 1 527, (2002) 1 ALL RENTCAS 353
Author: A.K. Yog
Bench: A.K. Yog
JUDGMENT A.K. Yog, J.
1. Heard learned counsel for the parties and perused the record.
2. This writ petition under Article 226/227 Constitution of India has been filed by one Om Prakash Bajpayee (the petitioner) on the ground that he entered into the possession of a shop-part of premises No. 55/113-Generalganj, Kanpur Nagar (hereinafter called the 'shop') as subtenant of one Satish Kumar Goenka (respondent No. 4) the tenant of the aforesaid premises whose owner and landlord happened to be M/s. Laxmi Ratan Cotton Mills, Respondent No. 6 a company registered under Companies Act. Sharda Gupta, respondent No. 5, happens to be the receiver of M/s. Laxmi Ratan Cotton Mills and undertaking belonging to the aforesaid company.
3. The petitioner is aggrieved by the impugned order dated 11.2.1999 and 20.2.1999 passed by the Delegated Authority/Rent Control and Eviction Officer under U.P. Urban Buildings (Regulation of Letting. Rent and Eviction) Act, 1972, U. P. Act No. XIII of 1972 (for short called 'the Act') Annexures-7 and 8 to the writ petition respectively whereby the said authority declared vacancy with respect to the 'shop' and allotted it in favour of one Mool Chand Bachhani (respondent No. 3) and prays for issuing a writ in the nature of certiorari to quash the aforesaid impugned orders as well as the order dated 9.1.2002 passed by the Additional District Judge, Court No. 7. Kanpur Nagar, dismissing the Rent Revision No. 60 of 2001, Om Prakash Bajpayi v. Mool Chand Bachhani and Ors., under Section 18 of the Act, Annexure-11 to the writ petition.
4. In the instant case, the 'Tenant-landlord' relationship between respondent Nos. 4 and 6 (Satish Kumar Goenka and M/s. Lakshmi Ratan Cotton Mills) is not disputed. The petitioner claims to have entered into a portion of the 'shop' in question on the basis of an agreement of 'commission-agency' dated 17.2.1969 (Annexure-1 to the petition) executed by Satish Kumar Goenka (respondent No. 4) and Om Prakash Bajpai (the petitioner) creating relationship of lessor and sublessee.
5. Landlord (respondent No. 6) filed Original Suit No. 1898 of 1970, M/s. Behari Lal Ram Charan and two others v. Virdhi Chand Badri Visal and Ors. (including the petitioner in the present petition) in the Court of Munsif City, Kanpur claiming decree for eviction/ possession and recovery of arrears of rent on the ground of default and subletting. Copy of the plaint of O.S. No. 1898 of 1970 has been filed as Annexure-2 to the petition. The said suit was decreed ex parte vide judgment and order dated 26.11.1975 (Annexure-3 to the petition).
6. It is not disputed at the Bar that said ex parte decree was never put to execution by the landlord-decree-holder. Sri M. B. Saxena, learned counsel for the petitioner made a statement (which is not controverted by the other side) that no application for execution was filed nor execution proceedings initiated against the present petitioner (Sublessee) and respondent No. 4 (Lessee) ; that the lessee-respondent No. 4 (Satish Kumar Goenka) filed only an application on January 17, 1976 for recalling of ex parte decree and the concerned Court stayed the operation of the ex parte decree subject to deposition of certain amount by way of security but instead of depositing amount of security. Revision No. 122 of 1976 dated March 7, 1976 was filed against the said order imposing condition of deposition of cash amount as security, and thereafter what happened ever since March, 1976 is neither on record with requisite details nor placed before the Court.
7. However, respondent No. 4 Satish Kumar Goenka the tenant, vide application dated 8.2.1999 intimated the Rent Control and Eviction Officer vacancy in the shop on the ground that he was relinquishing his tenancy having decided to quit the shop as required under Section 15 (2) of the Act (Annexure-6 to the petition).
8. Another application of the same date was filed by respondent No. 5. Sharad Gupta under Section 17 (1) of the Act before the Delegated Authority/Rent Control and Eviction Officer requesting that the shop in possession of Satish Kumar Goenka be allotted to Mool Chand Bachhani/ respondent No. 3 (Annexure-6 to the petition)'.
9. The Delegated Authority directed Rent Control Inspector to submit report. The Rent Control Inspector, accordingly, submitted report dated 16.2.1999 (Annexure-5 to the petition).
10. Learned counsel for the petitioner submits that notice was given only to the landlord and Satish Kumar Goenka under Rule 8 (2) of the rules framed under the Act and no notice given to the petitioner who was in occupation of the shop.
11. The Delegated Authority/Rent Control and Eviction Officer vide order dated 11.2.1999, after considering report of the Rent Control Inspector, declared the vacancy in the shop in question, directed vacancy to be notified on the notice board and fixed 16.2.1999 for further proceedings.
12. The Rent Control and Eviction Officer passed an order of allotment dated 20.2.1999 in favour of Mool Chand Bachhani respondent No. 3 (Annexure-8 to the petition).
13. Om Prakash Bajpai (the petitioner), on coming to know of the said proceedings, filed an application (registered as Misc. Case No. 63/7O of 1999, Om Prakash Bajpai v. Mool Chand Bachhani). The said application has been rejected by the Vth Additional District Judge, Kanpur Nagar vide Judgment and order dated September 4, 2000 (Annexure-9 to the petition). The said order was challenged by means of Writ Petition No. 41148 of 2000, Om Prakash Bajpai v. V Additional District Judge, Kanpur Nagar and Ors.. The said writ petition was allowed by the learned single Judge vide judgment and order dated 30.8.2001 (Annexure-10 to the petition) on the ground that revisional court ought to have condoned the delay in filing the revision and decide it on merit.
14. In compliance to the aforementioned High Court order, the Rent Control Revision No. 60 of 2001, Om Prakash Bajpai v. Mool Chand Bachhani, after hearing the petitioner the respondent No. 1. V-Additional District Judge, vide judgment and order dated 9.1.2002 (Annexure-11 to the petition) dismissed the said revision on merit,
15. The learned counsel for the petitioner has made two submissions before this Court, viz, (i) Om Prakash Bajpai (the petitioner) is entitled to the benefit contemplated under Section 14 of his possession/ occupation of the portion of the premises and accommodation in question become regularised and he could not be treated as unauthorised occupant, and (ii) no notice, under Rule 8 framed under the Act, was given to Om Prakash Bajpai, who was admittedly in possession of the accommodation in question.
16. Taking the second submission first, it will be noted that such an objection regarding the report of Rent Control Inspector dated 16.2.1999 (Annexure-5 to the writ petition) was never raised at the earliest or any other subsequent relevant stage as will be evident from the perusal of the High Court judgment and order dated 30.8.2001 (Annexure-10 to the writ petition) passed in Writ Petition No. 41148 of 2000.
17. The petitioner has not annexed copy of the memorandum of the revision to demonstrate that objection on the ground of non-compliance of Rule 8 of the rules framed under the Act was taken before the revisional court. On the basis of above, there remains no doubt that objection regarding Rule 8 was never taken earlier.
18. Petitioner cannot be permitted to raise this factual plea subsequently at this belated stage, now for the first time in the writ proceedings.
19. Moreover, in my considered opinion, no useful purpose would be served even if Rent Control Inspector is required to Inspect the premises in question after giving notice to the parties inasmuch as the facts of the case are not in dispute including the fact that the petitioner is in possession of the 'accommodation in question' which constitutes a part of the 'entire tenanted shop' in the tenancy of one Satish Kumar Goenka.
On this score also, no ground is made out for interference under Article 226, Constitution of India.
20. With reference to the first submission regarding regularisation of possession of Om Prakash Bajpai (the petitioner) under Section 14 of the Act, the learned counsel for the petitioner emphasised upon the fact that ex parte decree by the then landlord on the ground of default and subletting was not put to execution, after expiry of about 12 years the said decree becomes inexecutable, and possession of Om Prakash Bajpai (the petitioner) shall be presumed to be in possession as tenant with the consent of the landlord when 12 years expired in the context of Interim order of High Court in Writ Petition No. 41148 of 2000, if any, and the effect of interim order in Revision No. 122 of 1976 arising from Interim order requiring security in the proceedings arising from application dated 17.1.1976 (referred to above) are a question of fact, which have not been pleaded at any stage with full particulars required to adjudicate this question of fact.
21. The petitioner, referring to one circumstance of this case, desires that this Court should conclude that Om Prakash Bajpai (petitioner) was in possession of the accommodation in question with the implied consent of the landlord and on that basis the petitioner wants to take advantage of regularisation under Section 14 of the Act. It is not possible particularly when according to the petitioner there is no express consent on the part of the landlord in the Instant case,
22. According to petitioner's conclusion, other than the conclusion of 'Implied consent' in favour of petitioner-- O. P. Bajpai, is possible from the two circumstances, i.e., (i) ex parte decree for possession was not put to execution : and (ii) there has been an unwritten understanding between the concerned parties to continue the tenancy.
23. Theory of oral compromise and the petitioner continuing with his possession over the accommodation in question with landlord's implied consent has been attempted to be developed in paras 13, 14 and 15 of the writ petition. Averment is paras 13 and 15 are inferative and on that basis, the petitioner wants, to draw conclusion in his favour.
24. Para 14 of the writ petition reads :
"14. That in view of the pressure put up by the persons known to the contesting parties a verbal compromise, was arrived at and the landlord agreed to allow the main tenant to continue his tenancy and also gave consent to the petitioner to carry on his business in the premises which was given to him by the main tenant."
25. Firstly no details of the persons, who put pressure upon the parties for making the landlord agreeable to allow the petitioner to carry on his business have been mentioned.
26. Thus, even the pleadings in para 14 of the writ petition are not sufficient to establish the conclusion of the petitioner.
27. In para 12 of the memorandum of revision (filed as Annexure-CA-1 to counter-affidavit of respondent No. 3), it is stated that Om Prakash Bajpai had no Information or notice of the spot inspection report of the Rent Control Inspector and that he never visited the spot.
28. However, there is nothing in the revisional order relating to non-compliance of Rule 8 (2), which shows that objection regarding non-compliance of Rule 8 (2) was not pressed or urged.
29. Sri Ramendra Asthana, learned counsel appearing on behalf of the allottee-respondent No. 3 referred to para 38 of the counter-affidavit sworn by Harish Chand Bachhani (the pairokar of respondent No. 3) which reads :
"That the contents of paras 1,3, 14 and 15 of the writ petition, as framed are denied and to the contrary it is stated that the same do not go to show that the status of the petitioner Is that of an unauthorised occupant of the shop in dispute. It is further added that the theory of oral compromise has been introduced for the first time."
30. Reply to the said para 38 of the counter-affidavit finds place in para 29 of the rejoinder-affidavit sworn by Raj Bajpai and it reads :
"That the averments made in paragraph Nos. 38 and 39 of the counter-affidavit are not as based on wrong facts and circumstances, hence denied. Proper reply has already been given in the earlier paragraph. The deponent reiterates the averments made in paragraph Nos. 13 to 16 of the writ petition. The petitioner is entitled to get benefit of protection of Section 14 of the Act."
31. Last sentence of para 38 of counter-affidavit which reads "............................. It is further added that the theory of oral compromise has been Introduced for the first time" has not been denied or rebutted.
32. In view of the above, theory of oral compromise agreement, alleged in paras 13, 14 and 15 of the writ petition Is not established.
33. It is evident that petitioner is trying to improve upon his case by alleging certain facts as an afterthought. In the case of Tikka Manujendra Shah v. III Additional District and Sessions Judge, Saharanpur and Ors., 1980 ARC 589 para 3 (Hon. A. N. Verma, J.), it is held:
"Learned counsel for the petitioner has contented that the courts below have erred in law in giving to the respondent No. 3 the benefit of Section 14 of the aforesaid Act inasmuch as. Section 14 is applicable only to cases of occupation of an accommodation by a tenant, or licencee within the meaning of Section 2A of the aforesaid Act. He urged that according to the findings of the lower appellate court the respondent No. 3 was at best a sub-tenant of Smt. Ratan Priya and that a sub-tenant was not entitled to the benefit of the Section 14 of the aforesaid Act. Learned counsel for the respondent No. 3 on the other hand, urged that the respondent No. 3 was claiming to have been in possession of the room in dispute with the consent of the owner as a tenant directly from the owner ever since 1968."
34. There is no manner of doubt that status of Om Prakash Bajpai petitioner continued to be that of subtenant and there Is not even an iota of evidence that he ever changed his status and became tenant vis-a-vis landlord with the consent of landlord even assuming ex-parte decree was not put to execution.
35. The learned counsel for the petitioner, however, endeavoured to point out that some of the decisions referred to in the revistonal impugned order Annexure-11 to the petition were not relevant and not related to the question decided by the revisional court.
36. The said submission even if found to be correct, does not change position in law and particularly when petitioner Is invoking extra-ordinary discretionary jurisdiction under Article 226. Constitution of India and this Court finds that in effect, the end result Is not vitiated and substantial justice has been done.
37. There is no merit in the submissions made on behalf of the petitioner. This Court declines to Invoke its jurisdiction under Article 226, Constitution of India.
38. In view of the above, the petition is, accordingly, dismissed in limine.